SPORTS LAW HANDBOOK (For Coaches and Sports Administrators)

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SPORTS LAW HANDBOOK (For Coaches and Sports Administrators) Powered By Docstoc
					                       SPORTS LAW HANDBOOK
                (For Coaches and Sports Administrators)
                                    Copyright 2009
                                 William H. Glover, Jr.
                                  All rights reserved




                              TABLE OF CONTENTS

I.   SPORTS CONTRACTS
     Sports Agents and Contracts
     The Occupation of “Athlete”
     Matters to be considered in drafting contract for employment of athlete
     General Contract Law Principles
            Agreement
            Competent Parties
            Assent or Consent
            Supported by Consideration
            Made for a Lawful Objective
            In the Form Required by Law
            Interpretation of a Contract
            Categories of Contracts
     Team Contracts versus Individual Contracts
     The Professional Services (Standard Player) Contract
     Endorsement Contracts
     Appearance Contracts
     Drafting the Sports Contract
            Drafting Suggestions for a Sports Contract
     Damages and Remedies for Breach of Contract
     NCAA Contracts and Amateurism
            Evolution of Amateurism
             Other NCAA Contract Issues
             Letter of Intent
       Health Club Contracts

II.    TORT LAW AND WAIVERS
       Negligence
       Contributory Negligence versus Comparative Negligence
       Gross Negligence
       Spectator Injuries
       Malpractice in Sports
       Sports Officials
       Workers Compensation
       Insurance
       Waivers and Releases
              Drafting Suggestions
              Minors and Waivers
       Commercial Misappropriation
       Products Liability

III.   SPORT CRIMES
       Types of Crimes
       Contact Sports
       General Criminal Law Principles
       SPORTS VIOLENCE
       Illegitimate Sports Violence
       Governmental Legislation
       Internal League Controls:
       Fans and Spectators
       Sports Gambling
       Sports Bribery and Game Fixing

IV.    SPORTS AGENTS
       Questions a Star College Player Might Ask about a Prospective
       Agent

V.     EMPLOYMENT LAW
       Collective bargaining contracts
       Family and Medical Leave Act
       The Occupational Safety and Health Act of 1970
       Workmen Compensation Statutes
       Title VII of the Civil Rights Act of 1964
               Pregnancy Discrimination Act
               Quid pro quo
               Hostile working environment harassment
       Age Discrimination in Employment Act (ADEA)
       Americans with Disabilities Act
VI.     ANTITRUST AND LABOR LAW ISSUES IN SPORTS
        Sherman Antitrust Act
        Clayton Act
        National Labor Relations Board
        Monopolizing
        Baseball Exemption

VII.    INTELLECTUAL PROPERTY RIGHTS
        Trademarks and Service Marks
        Copyrights
        Patents
        Trade Secrets
        Remedies for Violation of Property Rights
        Ambush Marketing

VIII.   TITLE IX -- Other Women’s Issues
        College Sports
        Title IX Criticism
        Grove City College v. Bell
        Title IX Tests
        Evolution of Title IX
        Men and Title IX
        Programs Funding for Men and Women
        Contact Sports Exception
        Football
        Programs of Men Cut Due to Title IX
        Women Competing on Male Teams
        Men Competing on Teams with Women
        Equity in Athletics Disclosure Act
        Equal Pay Act of 1963, 29 U.S.C.A. § 206(b)

IX.     DRUGS AND TESTING
        Fourth Amendment
        Fifth Amendment
        NCAA Regulation
        National Football League
        The Olympic Games
        International Olympic Committee Policies

X.      INTERNATIONAL SPORTS ISSUES
        Competition for and During the Olympic Games
        The Olympic Movement
        Ted Stevens Olympic and Amateur Sports Act
Contracts in sports are no different than contracts in everyday life. Professional athletes
are compensated for their services with a paycheck just as anyone else. This section
examines the nature of personal services contracts of pro athletes. However, even the
amateur athlete deals with important contract-related issues. Amateur athletes often
have to make tough choices about changing their status from amateur to professional
given the dramatic increase in money that may be available to be earned in their sports.
Some professional athletes are paid a lot more money in one year than most people
ever earns in their lifetimes.

Sports Agents and Contracts
Sports agents serve a valuable role in terms of securing and negotiating contracts for
the professional athlete. Lawyers who represent athletes have generally been trained in
the fundamentals of contracts and should be familiar with the current market value of
their client relative to other athletes within the same sport. However, it should be noted
that hiring a lawyer is not required (nor is an agent for that matter) to secure deals for
the athlete. Some athletes do not wish to hire an agent for a variety of reasons,
including having to pay commissions or other fees associated with the representation.
Since the athlete has unique talents, abilities, and skills, their contracts are categorized
as personal services contracts.

Technically, a personal service contract may not be assigned to someone else. An
assignment is a transfer of rights that a party has under a contract to another person.
Why can’t a personal service contract be assigned? The talents of an athlete are
unique. For example, Peyton Manning could not assign his contract to another player.
His talents are so unique. The team owner would not honor such an assignment.

No one can be legally forced to work for someone for whom they do not want to work.
The Thirteenth Amendment to the U. S. Constitution provides: Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States. This provision of the
Constitution has been interpreted as including a prohibition against requiring someone
to work for an employer for whom they do not wish to work.

How then do team owners get away with trading players from one team to another,
since this in effect is assigning a personal service contract? Any contract may be
assigned with permission of the parties. The right to assign is part of a player’s contract.
However, some players have enough bargaining power to put in a do not trade clause.
This keeps a team from assigning the player to a team for whom he does not want to
play.
Public Nature of Sports Contracts
Though general contract principles apply in sports contracts, often such contracts are so
important to the particular league or community, that each community has a vested
financial and emotional interest in seeing their team perform well. Of course some
sports do not receive the same sort of public exposure and generate the same
widespread fan support.

The Occupation of “Athlete”
The occupation of professional athlete has become recognized as one of the most
financially rewarding professions. Sports sponsors often pay thousands of dollars to an
athlete to promote its product. A sports contract can have an impact on the lives of
thousands of people.

Today’s amateurs must face crucial issues such as whether to continue to compete as
an amateur or be lured away by money to professional teams during their sophomore or
junior year of college. College sports such as football, basketball, baseball, and hockey
are often regarded as proving grounds for the major professional leagues. Many
athletes are urged to abandon amateur status to be compensated for their services as a
professional.

Contracts for the employment of athletes should always be in writing and should contain
covenants by the athlete like promising to refrain from certain acts, such as participating
in dangerous activities.

Matters to be considered in drafting contract for employment of athlete
The following is a checklist of matters to be considered in drafting a contract for the
employment of an athlete:

      Names of parties.
      Addresses of parties.
      Statement of hiring.
      Term of contract.
      Duties and obligations of athlete.
      Attendance at training camp.
      Amount of compensation.
      Times at which compensation payable.
      Payment of bonus.
      Effect of taking bonus or bet on outcome of game.
      Board, lodging, and traveling expenses while traveling.
      Compliance with rules of the athletic association and/or club.
      Covenant not to play for others during term of contract.
      Covenant not to engage in related activities.
      Effect of not being in physical condition.
      Effect of injuries.
       Effect of temporary retirement from active sports.
       Payment of fines imposed by athletic association or club.
       Right of employer to assign the contract.
       Right of employer to seek injunction to prevent playing for others.
       Use of pictures for publicity purposes.
       Arbitration or other method of settling disputes between parties.
       Option to renew.
       Termination of contract.
       Grounds for termination.
       Procedure for termination.
       Incorporation of applicable rules and regulations of athletic association into
        Contract.
       State’s law to govern interpretation of contract.
       Effective date of contract.
       Date of execution of contract.

General Contract Law Principles
A contract is a legally binding agreement. A contract represents the meeting of the
minds of the parties. Contracts in sports are subject to the same principles of contract
formation as any other form of employment agreement.

There six elements that are necessary to a binding and enforceable contract:
    An agreement;
    Between competent parties;
    Based upon the genuine assent of the parties;
    Supported by consideration;
    Made for a lawful objective;
    In the form required by law.

Most sports contracts are express contracts. An express contract is a contract in which
the agreement of the parties is evidenced by their words, whether spoken or written.
There are virtually no more implied contracts in the sports industry. An implied contract
is a contract in which the agreement is not evidenced by written or spoken words, but by
the acts and conduct of the parties.1

Agreement
It is essential to a contract that there be an offer and, while the offer is still in existence,
it must be accepted without qualification. Once an offer is made, the person to whom it
is made can respond in four ways:
       Accept;
       Reject (this automatically terminates the offer);

1
  For example, if you left your watch to be repaired and nothing was said with regard to how much you would be
charged, you would be obligated to pay the reasonable value of the services, even though no specific agreement had
ever been made. Of course, implied contracts are sometimes hard to prove.
        Counteroffer (again, the offer is automatically terminated);
        Nothing (the offer then terminates after a reasonable time).

Offers may be terminated in any one of the following ways:
    Revocation of the offer by the person making it (the offeree);
    Counteroffer by offeree;
    Rejection of offer by offeree;
    Lapse of time;
    Death or disability of either party; or
    Performance of the contract becomes illegal after the offer is made.2

Competent Parties
An issue can arise with regard to the legal “capacity” aspect of a minor signing a
contract. Sports such as gymnastics, swimming, and tennis often involve contractual
issues regarding minors. Satisfying this element may require the signature of a parent
or guardian. Even though minors may enter into contractual arrangements, minors hold
the ability to void such contracts at their option. However, if the contract is voided, the
other party generally must be placed in the same position as prior to entering into the
agreement, or at least at no worse position.

Assent or Consent
The consent or assent of a party to an agreement must be genuine and voluntary. This
assent will not be genuine or voluntary in certain cases of mistake, deception or undue
pressure or duress. The agreement of parties may be affected by the fact that one or
both of them made a mistake. A unilateral mistake is a mistake made by one party to
the agreement. A mistake that is unknown to the other party usually does not affect the
enforceability of the agreement.

A unilateral mistake of one party that the other party knows about may make the
contract voidable by the party that is adversely affected by the mistake. A unilateral
mistake regarding a fact does not affect the contract. For example, if a coach orders
water-resistant parkas for his football team thinking that this means waterproof, he
cannot get out of the contract unless the sale was made with some sort of
misrepresentation as to the meaning of those words.

If both parties to an agreement make the same mistake regarding a key factual matter,
the agreement is void. For example, a contract is void if both parties mistakenly believe
that the contract can be performed when, in fact, it is impossible to perform it.3

2
  For example, if there is an offer made to sell alcoholic beverages to a store, but a city ordinance is passed
prohibiting the sale of alcoholic beverages before the offer is accepted, the offer is terminated.
3
  Suppose Smith promises over lunch to sell Jones an antique Mercedes in Smith's garage. Assume both parties
believe the automobile is in Smith's garage. However, the car had been destroyed by fire an hour before the
agreement and Smith had not learned of this. Since this fact was unknown to both parties, there is a mutual mistake
as to the possibility of performing the contract. The agreement is therefore void.
A person who has the ability and the opportunity to read a document before signing it is
contractually bound by the terms of the document even if the person signed it without
reading it. The signer cannot avoid liability based on the argument that no explanation
was given to him of the terms of the contract. Even if a person is unable to read or
understand the terms of the agreement, he is still bound by the terms of the agreement
since he should have tried to obtain an explanation of the agreement. The exception to
this rule is that if the other party knows, or has reason to know, that the signer cannot
read nor has a limited education, some Courts would hold that the other contracting
party should have read the document to the other party or explained the terms.

If a party relies on the explanation of another party as to the contents of the agreement,
the contract may be voided under two circumstances: (i) the party was justified in relying
on the explanation of the other party; and (ii) the explanation was fraudulent. The party
making the explanatory statements does not have to be a lawyer, but can be any
person who handles the agreement on a regular basis and therefore has a greater
knowledge of the content than the other person.

Supported by Consideration
Consideration is what the promisor (person making promise) demands and receives as
the price for the promise. The promisor is the person making the promise, and the
promisee is the person to whom the promise is made. Consideration consists of
something to which the promisor is not otherwise entitled. It is not necessary to use the
word consideration in a contract. Consideration is the price paid for the promise. When
thinking of consideration, think in terms of legal value as opposed to economic value.
While economic value (e.g., money) is the most common form of consideration,
consideration does not have to involve money.

Made for a Lawful Objective
The fourth element of a contract is that it must be made for a lawful objective. Courts
will not enforce contracts that are illegal or violate public policy. Such contracts are
considered void. For example, a gambling contract would be illegal in many states. If
the illegal agreement has not been performed, neither party can recover damages from
the other or require performance of the agreement. If the agreement has been
performed, neither party can sue the other for damages or have the agreement set
aside.

Assume Smith was not licensed to act as a sports agent. However, Jones asks Smith to
help him procure a contract with a professional football team. Jones promises to pay
Smith $10,000.00 if Smith can get him a NFL contract. Jones pays Smith $1,000.00 in
advance. Smith successfully negotiates a contract for Jones with an NFL team.
However, Jones refuses to pay the remaining $9,000.00. Smith sues Jones. A Court
would most likely rule in favor of Jones as to the unpaid commission since the state’s
sports agent licensing statute was violated by Smith’s acting as a sports agent without a
license. The agreement to pay him a commission was therefore void and can not be
enforced. Suppose Jones then claims that Smith should not be entitled to keep the
$1,000.00 advance he had received. The Court would most likely hold that although
Smith had no right to the commission, he had been paid and the Court would not aid
either party to the illegal contract. Therefore, Jones could not recover from Smith the
part of the commission that had already been paid.

In the Form Required by Law
As a general rule, contracts may be either oral or written. However, the law requires a
written agreement in specific situations. Most states have statutes that require the
following types of contracts to be in writing or they will be unenforceable:

       An agreement that cannot be performed within one year after the agreement is
        made;
       Contracts involving the sale of land;
       The promise to answer for the debt of another person; 4
       A promise by the executor or administrator of an estate of a deceased person to
        use personal funds to pay a debt of the estate;
       A promise made in consideration of marriage must be in writing (e.g., a
        prenuptial agreement); and
       A contract provides for the sale of goods with a price of $500.00 or more.

Interpretation of a Contract
If there is a dispute as to the interpretation of a contract, Courts seek to enforce the
intent of the parties to the contract. The intent which will be enforced is what a
reasonable person would believe that the parties intended. Sometimes the provisions of
a contract are contradictory. In such a situation, a Court will try to reconcile the
provisions and eliminate the conflict. However, if this cannot be done, the Court will
declare that there is no contract. For example, John makes a contract to sell 100 acres
of land to Joe. One paragraph of the contract states that the purchase price is
$100,000.00. Another paragraph states that the purchase price is $1,100.00 per acre,
which would produce a total price of $110,000.00. Which amount would be binding?
Neither amount would be binding if the conflict in the terms could not be reconciled by
parol evidence.5

In some cases, a conflict can be solved by considering the form of the conflicting terms.
If a contract is partly printed or typewritten and partly handwritten, the handwritten part
would prevail if it conflicted with the typewritten or printed part. If there is a conflict
between the printed part and a typewritten part, the typewritten part would prevail. If
there is a conflict between an amount or quantity expressed both in words and figures,
as on a check, the amount or quantity expressed in words prevails. For example, if a
check is written for $1,000.00, yet the check states it is for One Hundred and 00/100
Dollars, the words would prevail over the figures.



4
  For example, an oral promise by the president of Acme Company to pay the debt owed by Acme to First National
Bank would not be enforceable unless in writing.
5
  Parol evidence is oral evidence, such as testimony in a court, as opposed to written evidence.
A contract is ambiguous when it is uncertain what the intent of the parties was and the
contract is capable of more than one reasonable interpretation. Sometimes ambiguous
terms can be explained by the admission of parol evidence. Also, Courts abide by the
rule that an ambiguous contract is interpreted against the party who drafted it. In other
words, the party who did not draft the contract will be given the benefit of the doubt so to
speak.

Categories of Contracts
Sports contracts can be divided into three general categories:
    professional services contracts (sometimes called standard player contracts)
    endorsement contracts, and
    Appearance contracts.

Team Contracts versus Individual Contracts
If a professional athlete is part of a team, usually the athlete receives a standard
Player’s contract. The only difference between his contract and other members of the
team are usually salary, bonuses, and the option to renegotiate.

The Professional Services (Standard Player) Contract
The standard player contract (SPK) is usually in a “boilerplate” form. Boilerplate is
standard wording that can be reused over and over without change. Whether the athlete
is involved in a league with a players association or not, the contract usually offered to
the athlete and other athletes are all the same other than the salary and bonus. There
can be addendums to the SPK.

Newly formed leagues often model their own contracts after one of the Big Four
(NFL, MLB, NBA and NHL) in order to recognize issues relevant to team owners and
athletes. Some start-up leagues, however, have taken a newer approach to professional
services contracts by establishing minimal salaries for the athletes in that sport and
rewarding the team and athlete on a per game basis with incentives. The now defunct
Xtreme Football League (XFL), for example, offered modest salaries to its players. Such
wages were comparable to wages of the average U.S. worker. This is primarily due to
the fact that the league owned all of the teams rather than each team serving as a
franchise for the league. None of the Big Four sports leagues are run by a single entity.
Each team is a franchise and competes for players. That is a primary reason for the
escalation of player salaries.

Endorsement Contracts
Endorsement Contracts
Unlike the professional services contract, the endorsement contract does not involve an
employer-employee relationship. Rather, it is one of contractor- independent
contractor.6

An endorsement contract is one that grants the sponsor the right to use (i.e., license)
the athlete’s name, image, or likeness in connection with advertising the sponsor’s
products or services. In most professional sports, the leagues prohibit individual players
from endorsing alcoholic beverages or tobacco products. Also, the NFL recently
established a policy that players may not endorse certain nutritional supplements. There
are no set rules for an endorsement agreement other than that they be legal. The more
an sponsor feels that the athlete can assist in the sales of the particular product, the
greater the likelihood of more money.

Appearance Contracts
An appearance contract compensates the athlete for appearing at a public function,
sports camp, golf tournament, etc.

Drafting the Sports Contract
All professional services contracts have important common clauses. According to the
standard player’s contract of the NFLPA, MLBPA NBPA, and NHLPA,7 all contract
provisions have been established, except for salary and bonuses. Additionally, the
players associations have group licensing arrangements in which players are
compensated by licensing their names and likenesses in group package deals to trading
card companies and video games.

It is important to remember that when drafting a contract, it is often a good policy to be a
pessimist: Think of what can go wrong. Though most contracts begin as a beneficial
relationship between the parties, it is well known that over time attitudes can change.
Therefore, the contract drafter should use exceptional care to ensure that policies and
procedures are provided to address situations and legal issues that might arise when
something goes wrong. Good contract drafters protect their client in the event such a
situation might occur.


6
  An independent contractor is a person or business who performs services for another person pursuant to an
agreement and is not subject to the other's control or the manner and means of performing the services. An
independent contractor is distinguished from an employee, who works regularly for an employer. The exact nature
of the independent contractor's relationship with the hiring party is important since an independent contractor pays
their own Social Security, income taxes without payroll deduction, has no retirement or health plan rights, and often
is not entitled to worker's compensation coverage.
7
 I.e., National Football League Players Association, Major League Baseball Players Association, National
Basketball Players Association and National Hockey League Players Association
Drafting Suggestions for a Sports Contract
The following clauses are pretty standard.

Title
It is always important to name the agreement. Keep the description to a minimum, but
the title identifies the type of contractual agreement. Phrases can be used such as
Sponsorship Agreement, Sports Contract, Agreement for Athletic Services, or
Representation Agreement.

Describe the Parties
Establish the name and address of the parties to the contract. For example:

Employment Agreement made (date), between (Name of Employer), a corporation
organized and existing under the laws of the state of (Name of State), with its principal
office located at (street address, city, county, state, zip code), the holder of a
professional (Name of Sport) franchise of the (Name of league) (Employer), and (Name of
Employee), of (street address, city, county, state, zip code), (Employee).

Term
It is always important to establish the duration of the agreement from the beginning date
to the end date. For example:

Subject to the provisions of the renewal options on the part of either party to this
Agreement, as set forth below, the term of this Agreement shall begin on the effective
date set forth above, and shall terminate on (date).

Option of Club to Renew Contract
On or before (date) following the last playing season covered by this Agreement, Club
may tender to Player an Agreement for the next succeeding season by mailing such
Agreement to Player at his address as shown in this Agreement. If player does not sign
and return such Agreement to Club so that Club receives it on or before (date) of that
year, then this Agreement shall be deemed renewed and extended for a period of (e.g.,
one year), upon the same terms and conditions in all respects as are provided in this
Agreement, except that the compensation payable to Player shall be the sum provided in
the Agreement tendered to Player pursuant to the provisions of this section, which
compensation shall in no event be less than _____% of the compensation payable to
Player for the last playing season covered by this Agreement.

Duties and Obligations
Once the parties, term of the agreement, and purpose have been established, it is
important to outline the rights, duties, and responsibilities of each party. This can
include compensation, but usually compensation has its own paragraph for clarification
purposes.

Player's employment shall include attendance at training camp, playing the games
scheduled for the team during the scheduled season, playing all exhibition games
scheduled by the team during and prior to the scheduled season, and playing the play-off
or championship series games for which Player is to receive such additional
compensation as provided in this Agreement.

Exhibition games

Exhibition games shall not be played on the (number) day prior to the opening of a
team's regular season schedule or on a day prior to a regularly scheduled game.
Exhibition games during the regular season shall not exceed (number). For the purpose
of this section, invitational games shall not be considered as exhibition games.

Compensation
This is often referred to as legal consideration. An addendum attached to the contract is
often helpful when using standard league contracts. The addendum could state
increased salary, bonuses, and other incentives.

Board, lodging, and travel expenses
Club shall pay the reasonable board and lodging expenses of player incurred while
playing in games for club in other than the home city of club. Club shall also pay all
proper and necessary traveling expenses of player and his meals en-route to and from
games.

Exclusivity
Due to the personal and unique nature of the sports contract, most employers and
sponsors require an exclusive arrangement . It is common for a sponsor in this
paragraph to require the athlete to use the products or services exclusively at all times,
especially in public, or the endorser may have the right to terminate the agreement as a
breach of contract or failure to use “best efforts.”

Participation in other sports
Player and Club recognize that Player's participation in other sports may impair or
destroy his ability and skill as a (indicate sport) player. Accordingly, player agrees, from
and after the execution of this Agreement, and for the duration of this agreement, not to
engage or participate in any other sport or activity involving a substantial risk of
personal injury, including, but not limited to, automobile or motorcycle racing, fencing,
parachuting or skydiving, boxing, wrestling, karate, judo, skiing, or ice hockey.

Confidentiality
A confidentiality clause is often considered valuable to both the team and the athlete.
Players unions have somewhat undermined such a clause with respect to athletes
under contract while represented by a players union by making salaries public. In
nonunion contracts, confidentiality is an important consideration for the sponsor and the
athlete to prevent similarly situated athletes from comparing their agreements. This will
undoubtedly create concern for a party to the contract if the terms are revealed.

Termination
If one party does not live up to its end of the bargain, he or she may be released from
the agreement. Topics covered in many termination clauses include:
     One party’s refusal to keep the terms of the agreement confidential,
      The athlete’s voluntary discontinuation of participation in the sport,
      Cases in which the athlete is found guilty of a crime or is found to have been a
       part of unethical or immoral conduct (sometimes called a morals clause).
      Participating in dangerous activities (e.g., skydiving, motocross racing).

Grounds for Termination By Player
    If club defaults in the payments to player provided for in this agreement or fails to
     perform any other material obligation agreed to be performed by club under this
     agreement, player shall notify club in writing of the facts constituting such default
     or failure.
    If club shall not cause such default or failure to be remedied within (number) days
     after receipt of such written notice, player shall have the right, by a further written
     notice to club to terminate this agreement.
    On termination of this agreement by player, all obligations of both parties under
     this agreement shall cease on the date of termination, except the obligation of
     club to pay player's compensation to such date of termination.

Non-assignment
It is important to establish that such an agreement is a personal services contract and
therefore is non-assignable.

The rights of each party under this Agreement are personal to that party and may not be
assigned or transferred to any other person, firm, corporation, or other entity without the
prior, express, and written consent of the other party.

Alternative Dispute Resolution (ADR)
The traditional method of resolving a breach of contract issue is through litigation.
Alternative dispute resolution may be more effective in to resolving disputes by
mediation or arbitration. Most collective bargaining agreements address issues related
to arbitration and/or mediation. Arbitration is a process in which the disputing parties
choose a neutral third person, or arbitrator, who hears both sides of the dispute and
then renders a decision. Mediation is a process by which parties in a dispute negotiate a
settlement of their claims against each other through the assistance of a trained, neutral
mediator. It is a non-adversarial process. Mediation is entirely voluntary and non-
binding. The mediator has no power to neither render a decision nor force the parties to
accept a settlement. The mediator generally does not give an opinion or render an
award, and typically does not even have any knowledge of the case prior to mediation.

The big difference between mediation and arbitration is that a mediator helps the parties
to fashion their own settlement, while an arbitrator decides the issue. An arbitrator is
more like a judge than a mediator. The parties go into arbitration knowing that they will
be bound by the decision. The parties go into mediation knowing that nothing will be
decided unless and until they agree to it. Arbitration, however, is unlike litigation in that
the parties choose the arbitrator, the proceedings are conducted in a private manner,
and the rules of evidence and procedure are informal. Also, in arbitration, the arbitrators
tend to be experts in the issues they are called on to decide. Arbitration has been the
widest used ADR process in the business world, and would be especially desirable
where the parties do not want to litigate an issue, but do want a binding decision. They
can go into arbitration knowing that they can get a quick, and relatively inexpensive
decision, which they agree they will be bound by. Mediation offers no guarantee of a
decision.

Most arbitration is binding. However, it can be non-binding if that is what the parties
desire. That kind of defeats the purpose of arbitration though. In any event, in both
binding and non-binding arbitration, the arbitrator renders a decision much like a judge.

It is not uncommon to find arbitration provisions in business contracts. An example of
such a provision is as follows:

Any dispute under this Agreement shall be required to be resolved by binding arbitration
of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select
one arbitrator and both arbitrators shall then select a third. The third arbitrator so
selected shall arbitrate said dispute. The arbitration shall be governed by the rules of
the American Arbitration Association then in force and effect

Governing Law
Since many sports contracts affect parties from different states, agreeing upon the
controlling law ahead of time can save jurisdictional issues from becoming problematic.

This Agreement shall be governed by, construed, and enforced in accordance with the
laws of the State of (Name of State).

Merger
Merger is a legal term that essentially means that any other prior oral or written
agreements or statements are null and void, and that this contract constitutes
the final and complete agreement between the parties.

This Agreement shall constitute the entire agreement between the parties and any prior
understanding or representation of any kind preceding the date of this Agreement shall
not be binding upon either party except to the extent incorporated in this Agreement.

Signature Line
Since many parties require possession of an original copy of the contract, signing in
blue ink can avoid issues as to which contract is the original. Sometimes it is best to
have the parties initial each page at the bottom to avoid later substitution of pages.


DAMAGES AND REMEDIES FOR BREACH OF CONTRACT
A contracting party may be entitled to damages if the other party breaches a contract.
Generally, damages are the sum of money necessary to put a party in the same or
equivalent financial position as the party would have been had the contract been
performed.

A party may recover compensatory damages for any actual loss that the party can
prove with reasonable certainty. An example would be in a situation where the plaintiff
has paid $10,000.00 for a lawn tractor, but the defendant refuses to deliver the tractor.
The compensatory damages would be $10,000.00.

Punitive damages are designed to punish. A Court uses punitive damages to make an
example of a defendant in order to keep others from doing a similar wrong. Punitive
damages are rare in a breach of contract case.

Consequential damages would arise in a situation where the failure to deliver the tractor
caused the plaintiff to have to rent a tractor to cut the field. The amount of rent would be
consequential damages.

A non-breaching party has a duty to mitigate damages. In other words, a non-breaching
party has the duty to take reasonable steps to minimize damages. The failure to
mitigate damages may cause the victim to only be allowed to recover damages that
would have resulted if mitigated. If Acme College refused to play a game it contracted to
play with Southwestern State, and there was another school that could be substituted,
like Northeastern State, the court would not award loss gate receipts to Southwestern
State if they just sat on their hands and refused to try to get another team to fill that
date. Damages would be the difference in probable gate receipts for an Acme College
game and a game with Northeastern State.

An appropriate remedy for a breach may be rescission of the contract. This places the
parties in the position they would have been had the contract never been entered into.
For example, money is returned to the buyer and the buyer returns the merchandise to
the seller.

Specific performance is an action to compel a party who breached a contract to perform
the contract as promised. The subject matter of the contract must be unique, or an
action for damages would be the proper remedy. Actions for specific performance are
usually allowed with regard to:
     A contract involving the sale of particular real estate; and
     A contract for sale of a particular business.

Specific performance is not allowed regarding a contract for the sale of personal
property unless the property is unique in some way like an antique, coin collection, or
art objects. Generally, a party cannot obtain specific performance of personal service
contracts or employment contracts. This is because of possibly violating the Thirteenth
Amendment regarding involuntary servitude. However, breach of a service or
employment contract can subject the breaching party to a suit for damages.

A contract may state the amount of liquidated damages to be paid if the contract is
breached. Upon a party's breach, the other party will recover this amount of damages
whether actual damages are more or less than the liquidated amount. Liquidated
damages are damages specified in the contract itself and are often referred to as
“agreed-upon” damages. For example, late delivery of jerseys to a school or team might
have a clause that each day late constitutes damages of $100 per day. Courts will
honor liquidated damage provisions if actual damages are hard to determine and the
amount is not excessive when compared with probable damages. If the agreed-upon
liquidated damage amount is unreasonable, the Court will hold the liquidated damage
clause to be void as a penalty. In such situations, you have to prove the actual damages
if the clause were declared to be void.


                       NCAA Contracts and Amateurism
NCAA Contracts and Amateurism
A sample policy on amateurism and the NCAA is as follows:

As a member of the NCAA, State University requires that all of its student-athletes be
amateurs in their sport. You are a professional if you:

1.     Are paid (in any form) or accept the promise of pay for playing in an
       athletics contest;

2.     Sign a contract or verbally commit with an agent or a professional sports
       organization;

3.     Ask that your name be placed on a draft list (Note: in basketball, once
       you become a student-athlete at an NCAA school, you may enter a professional
       league's draft one time without jeopardizing your eligibility provided you are not
       drafted by any team in that league and you declare your intention in writing to
       return to college within 30 days after the draft;

4.     Use your athletics skill for pay in any form (for example, TV commercials,
       demonstrations);

5.     Play on a professional athletics team; or

6.     Participate on an amateur sports team and receive any salary, incentive
       payment, award, gratuity, educational expenses or expense allowance
       (other than playing apparel, equipment and actual and necessary travel,
       and room and board expenses).

Though the National Collegiate Athletic Association (NCAA) is considered a nonprofit
organization, its billion-dollar television contract and its rules and policies affect the
sports industry in numerous ways and often present a conflict between the concepts of
amateurism and professionalism.

The NCAA was originally established to address safety issues involved in the sport of
football. The organization has grown to become the largest amateur organization in the
United States related to the regulation of athletes. Membership in the NCAA is Divided
into Division III, Division II and Division I, the largest division and the one that offers the
most scholarships to athletes. Each sport has its own rules and limits the number of
scholarships in a given sport. Sports such as football and basketball are characterized
as “revenue” sports while soccer, gymnastics, track and field, and other sports are
considered “non-revenue sports.”

Membership in the NCAA is entirely voluntary, and some colleges or universities have
chosen not to become a member of this organization. However, more than 1,200
schools are now members. Sharing in revenues generated by the NCAA is similar to a
shareholder distribution plan. This “sharing of the wealth” is driven by television
contracts with the organization for post-season football bowl championships and the
contract with network television for the NCAA Division I Men’s Basketball Tournament.

Recognizing that the professional sports industry and the minor leagues are now
competitors in a sense for players, the NCAA has recently modified its rules regarding
amateurism to allow a professional athlete to participate in a college or university sports
program if the athlete has remaining eligibility, and the participation is in a different sport
than the player’s professional sport. Thus, a 27-year-old football quarterback who
played professionally as a minor league baseball player may still be able to compete as
an amateur in football for a college or university. It will be interesting to see if the NCAA
changes its position further on “amateurism” in the near future.

Evolution of Amateurism
An amateur athlete used to be defined as someone who participated purely for the love
of the sport and did not expect compensation for athletic performance. For numerous
years, the United States Olympic Committee (USOC) prevented professional athletes
from participating in the Olympic Games just as the NCAA does not allow professional
athletes to participate in college as amateurs within that particular sport. The USOC has
modified its nonprofessional agenda, however, and actually endorses professionals to
participate in its Olympic events. However, the NCAA continues to refuse to allow
athletes to be paid for their services as athletes other than scholarships.

Other NCAA Contract Issues
Numerous rules and regulations surround the athlete that signs an NCAA approved
letter of intent. Athletes agree to rules that regulate transferring to another institution,
being randomly tested for performance-enhancing drugs, and earning a minimum
number of credit hours in their studies. These and other rules are important aspects of
the contractual relationship between the NCAA and the athlete. The NCAA and USOC
have agreed to examine ways to ensure that talented amateur athletes who have
remaining collegiate eligibility may actually earn a stipend from an Olympic national
governing body such as United States Swimming and still retain amateur status.

Letter of Intent
Division I, Division II and NAIA8 athletes are the beneficiaries of athletic scholarships
(more specifically referred to as grants-in-aid). They sign an agreement with the college
or university in the form of a letter of intent, which is a binding agreement between the
athlete and an institution. This agreement provides that in exchange for the athlete’s
services in their sport, they will have tuition, room and board, and books paid for by the
institution. However, no financial compensation may be awarded to athletes in
exchange for their athletic talents in that particular sport.

There are questions, however, as to the validity of such agreements if a letter of intent
were challenged in court. It appears that such an agreement need not be signed as a
prerequisite to participation in NCAA-governed sports, though the NCAA manual does
8
    National Association of Intercollegiate Athletics
refer to the letter of intent program. The National Letter of Intent Program is actually not
administered by the NCAA but rather through the College Commissioners Association
(CCA). The CCA has administered this program for 30 years and has no reported
lawsuits against it. However, hundreds of appeals are filed each year with respect to
letters of intent, particularly when prospective athletes sign to play with a college or
university and the coach who recruited them is no longer employed at the college when
the athlete later enrolls in school. He or she may desires to transfer to another school.

Many letters of intent are signed by high school seniors who may not have reached the
age of 18. Therefore, the legal capacity of the minor might be taken into consideration if
he or she desires to void this agreement

Health Club Contracts
Most states now regulate the terms of a health club contract in some form or another.
Many states have limits on the length of health club contracts. Many states cap the
length of a health club contract to no more than three years. Many states also allow the
member to void a health club contract within three business days of signing the
contract. Due to the extremely competitive nature of health club contracts and the
temptation for fraud, health club regulations often are found within a particular state’s
consumer protection laws and may include a mandatory warning on the contract in bold
lettering such as:

YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO
MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS
TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR
AN EXPLANATION OF THIS RIGHT.

                           II.     TORT LAW AND WAIVERS

Conduct that harms other people or their property is generally called a tort. It is a
private wrong against a person for which the person may recover damages. The injured
party may sue the wrongdoer to recover damages to compensate him for the harm or
loss caused. The conduct that is a tort may also be a crime. A crime is a wrong arising
from a violation of a public duty. A tort is a wrong arising from the violation of a private
duty. Again, however, a crime can also constitute a tort. For example, assault is a tort,
but it is also a crime. A person who is assaulted may bring charges against the
assailant and have him prosecuted criminally and may also sue the assailant for
damages under tort law. An employee's theft of his employer's property that was
entrusted to the employee constitutes the crime of embezzlement as well as the tort of
conversion.

There are three types of torts: intentional torts; negligence; and strict liability. An
intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional
conduct that results in damages to another. Striking another person in a fight is an
intentional act that would be the tort of battery. Striking a person accidentally would not
be an intentional tort since there was not intent to strike the person. This may, however,
be a negligent act. Careless conduct that results in damage to another is negligence.

Generally, liability because of a tort only arises where the defendant either intended to
cause harm to the plaintiff or in situations where the defendant is negligent. However,
in some areas, liability can arise even when there is no intention to cause harm or
negligence. For example, in most states, when a contractor uses dynamite which
causes debris to be thrown onto the land of another, causing damages such as broken
windows, the landowner may recover damages from the contractor even though the
contractor may not have been negligent and did not intend to cause any harm. This is
called strict liability or absolute liability. Basically, society is saying that the activity is so
dangerous to the public that there must be liability. However, society is not going so far
as to outlaw the activity.

Products liability is major area of sports tort law. Participants use all different types of
sports-related equipment. Products liability refers to the liability of any or all parties
along the chain of manufacture of any product for damage caused by that product. This
includes the manufacturer of component parts, an assembling manufacturer, the
wholesaler, and the retail store owner. Product liability suits may be brought by the
purchaser of the product or by someone to whom the product was loaned. Products
liability claims can be based on negligence, strict liability, or breach of warranty of
fitness.9 In a strict liability theory of liability, the degree of care exercised by the
manufacturer is irrelevant. If the product is proven to be defective, the manufacturer
may be held liable for the harm resulting from the defect.

Negligence
Negligence is the failure to follow the degree of care that would be followed by a
reasonably prudent person in order to avoid foreseeable harm. A person can be
negligent if he or she acts with less care than a reasonable person would use under
similar circumstances.

Ben drove a car on a country road at 35 miles an hour. The maximum speed limit was
45 miles an hour. He struck and killed a cow that was crossing the road. The owner of
the cow sued Ben for the value of the cow. Ben raised the defense that since he was
not driving above the speed limit, there could be no liability for negligence. Was this
defense valid? No. A person must at all times act in the manner in which a reasonable
person would act under the circumstances. The fact that Ben was driving within the
speed limit was only one of the circumstances to consider. The weather or the condition
of the road may have made it unreasonable to drive at 35 miles an hour. Driving slower
than the speed limit does not in and of itself prove that the driver was acting reasonably.
The reasonable person standard varies in accordance with the situation. Generally,

9
  Under the Uniform Commercial Code (UCC), which has been adopted in some form by almost all
states, there are implied warranties in every sales transaction that the goods sold are fit for the ordinary
purposes for which such goods are to be used.
when a jury is involved, what is reasonable are what members of the jury believed is
reasonable.

The degree of care required of a person is that which an ordinarily prudent person
would exercise under similar circumstances. This does not necessarily mean a degree
of care that would have prevented the harm from occurring. This degree of care varies.
For example, if one is engaged in a service involving skill (such as a medical doctor) the
care must be measured in light of what an ordinarily prudent skilled person (e.g., doctor)
would be. The question the jury seeks to determine is what care and skill would
reasonably be expected under the circumstances involved in the case. Plaintiff must
prove that:

      The defendant owed a duty of care to the plaintiff;
      The defendant breached that duty to the plaintiff;
      The conduct of defendant was unreasonable;
      The defendant was the proximate cause of the breach of duty; and
      There is evidence of damages.

If the plaintiff fails in proving any of these points, the plaintiff’s claim should not succeed.

In order for someone to be legally responsible for damages, it is necessary to show that
the wrongful act was the cause of the harm. The legal term is that the act must be the
proximate cause of the harm.

The final element of negligence is damages. A plaintiff may recover monetary damages
to compensate the plaintiff for economic losses such as lost wages and medical
expenses. A plaintiff may also recover non-economic losses such as for pain and
suffering. Punitive damages may also be appropriate. Punitive damages are designed
to punish the defendant for his wrongdoing and are generally only appropriate if the
plaintiff can prove gross negligence or willful misconduct.

Contributory Negligence versus Comparative Negligence
If the negligence of the plaintiff is partially responsible for his harm, his recovery from
the defendant may be reduced or barred. This is called contributory or comparative
negligence. In a small minority of states, the contributory negligence rule states that if
the plaintiff contributes to his harm, he cannot recover from the defendant. In most
states, this rule has been rejected because it has been regarded as unjust in situations
where the plaintiff's negligence was slight in comparison to the defendant's negligence.

Comparative negligence provides that there should be a comparing of the negligence of
the plaintiff and the defendant. This is the rule followed in most states. The negligence
of the plaintiff would not bar recovery in these states, but would only reduce the
plaintiff's recovery to the extent that the harm was caused by plaintiff. For example, if
the jury decides that the plaintiff has sustained damages of $100,000.00, but that his
own negligence was one-fourth the cause of the damage, the plaintiff would only be
allowed to recover $75,000.00.10

Assumption of risk is a defense which a defendant can raise which basically states that
the plaintiff has knowingly assumed the risk of the harm that was caused. A fan hit by a
basketball at a basketball game has assumed the risk of getting hit because it is a
known danger that basketballs sometimes go into the stands because of a bad pass or
if a player misses a pass.

Gross Negligence
What happens when sports participants break the rules so badly that it appears the sole
purpose of a player was to injure another player intentionally during a game?. This level
of recklessness is difficult to prove. However, if the plaintiff is successful, the plaintiff
may recover punitive damages for the outrageous conduct of the defendant in addition
to the general damages (e.g., medical bills and loss of wages).

Spectator Injuries
While most sports torts involve personal injuries caused by participants against each
other, a spectator to a sporting event might be injured. Some examples are foul balls,
deflected hockey pucks, and flying debris (at a Nascar event). In such an event, who is
responsible for the spectator’s injuries? Does the owner of a stadium have a duty to
warn or protect spectators from foul balls or other foreseeable injuries? American
courts have refused to allow recovery for injuries to spectators caused by the open and
obvious rules of the game, particularly when it comes to foul balls. On the other hand,
what about other sports, such as golf, hockey, and football when an activity on the field
might impact the fans in the stands (e.g. fights between spectators)? Does an owner of
a stadium owe a duty to spectators to prevent all foreseeable injuries, or does common
sense impose some duties on the spectators themselves? Do cities and counties have
to warn recreational swimmers that diving into shallow water could expose them to a
risk of danger? It is wise to post signs that warn of potential dangers but to warn of all
possible dangers are clearly not possible in the sports context. If a sign is at issue, the
adequacy of the posting of the sign is usually the focus of the analysis.

In 2002, a 13-year-old girl died after she was hit in the head by a hockey puck that shot
over the glass during the Columbus Blue Jackets NHL hockey game in March 2002.
She died two days after she was hit. The ticket stubs had warnings about the dangers
due to flying pucks. It is unlikely that such warnings provide an absolute defense to
death from flying pucks.

When large crowds gather for sporting events, there is a greater likelihood of injuries to
spectators. Balancing fun, safety, and security have been an issue for organizers of
events for many years.

10
   Some states combine the contributory and comparative negligence rules and refuse to allow the plaintiff to
recover anything if his negligence is more than 50% of the cause of the harm.
A person who operates a place of public amusement or entertainment must exercise
reasonable care with regard to the construction, maintenance, and management of his
buildings or structures and his premises, having regard to the character of
entertainment given and the customary conduct of persons attending such
entertainment. The operator must employ sufficient personnel to maintain the premises
in a reasonably safe condition. He or she must use ordinary care to maintain the floors
and aisles along which patrons are expected to pass in a reasonably safe condition for
their use; and this principle has been applied in cases where personal injury resulted
from a slippery floor, aisle, ramp or walkway, defective carpet, or the presence of an
object the floor or in the aisle.

Res ipsa loquitur is a Latin term meaning the thing speaks for itself. It is a doctrine of
law that one is presumed to be negligent if he/she had exclusive control of whatever
caused the injury even though there is no specific evidence of an act of negligence, and
the accident would not have happened without negligence. The traditional elements
needed to prove negligence through the doctrine of res ipsa loquitur include:

      The harm would not ordinarily have occurred without someone's negligence;
      The instrumentality of the harm was under the exclusive control of the defendant
       at the time of the likely negligent act; and
      The plaintiff did not contribute to the harm by his own negligence.

The res ipsa loquitur doctrine has been applied in actions for injuries caused by the
falling of various objects in theaters or other public places of amusement or exhibition,
including:

      The fall of an object or substance from the ceiling;
      The striking of a traveler on the public streets by a baseball which came over a
       fence surrounding a baseball park.
      The striking of a fisherman in the eye by his or her fishing companion while the
       latter was casting.

In some cases involving defective seats or the collapse of a seat, bleachers,
grandstands, a balcony, or the like, it has been held that the doctrine of res ipsa loquitur
was applicable, or at least that such a happening warranted the inference that the
plaintiff's injury was caused by the negligence of the defendant.

Since the doctrine of res ipsa loquitur generally is limited to those cases where it
appears that the instrumentality which caused the injury was under the sole and
exclusive control and management of the defendant, the courts have, as a general rule,
refused to apply the doctrine where injury resulted from the pushing, crowding, or
jostling of other patrons.

Wrongful Death
When somebody dies in consequences of a wrongful act a person, either by negligence
or by a deliberate act, such a death is called wrongful death. This is the civil equivalent
of the criminal charge of one of the forms of homicide, including murder. Should a
sports participant be held liable for the death of another athlete or a spectator? Virtually
all sports involve an activity and an aspect of risk that could lead to the death of a
participant. It is important for architects and administrators to provide protective
screening and appropriate warnings for participants and spectators related to such
concerns. What about fights? What about slugging someone in the face with a hockey
stick?11

Malpractice in Sports
Malpractice is a failure by an physician or other professional to use the care and skill
that other members of their profession would use under similar circumstances. When an
accountant, doctor, attorney, or some other professional contracts to perform services,
there is a duty to exercise skill and care as is common within the community for persons
performing similar services. Failure to fulfill that duty is malpractice. What about team
physicians and trainers. What if a trainer or doctor employed by a team rather than the
player recommends that the injured player participate? To whom does the medical
practitioner owe a duty of care, the player or the team? Sometimes this decision is not
clear cut. Malpractice is a broad category and could involve anything from an improper
diagnosis to the prescription of an inappropriate medication.12

Sports Officials
Another area of sports torts involves the officials of games or other sports contests.
Officials in sports can greatly affect the outcome of the sports contest. Professional
sports such as football, basketball, and hockey have incorporated the use of the
television replay to ensure that the often subjective regulation of the sports contest
remains as objective as possible. Sports officials, however, are often subject to
harassment, intimidation, and sometimes violent, physical or verbal abuse from fans,
players, and coaches. Whether at the professional or amateur level, sports officials are
often the targets of hostile emotions due to the extreme competitiveness in the sports
arena. Due to numerous lawsuits against sports officials for alleged intentional
misconduct, states have been forced to enact laws that protect officials and provide
immunity from such lawsuits. Immunity from civil suits only applies to unintentional,
negligent acts by the officials. This affords the sports official some protection against
litigation.13

Workers Compensation
For most kinds of employment, state workers' compensation statutes govern
compensation for injuries. The statutes provide that the injured employee is entitled to
compensation for accidents occurring in the course of employment. Every State has
some form of workers' compensation legislation. The statutes vary widely from State to

11
   Sports Law at p. 69 by Adam Epstein, Delmar Leaning (2003)
12
   Id. at p. 76
13
   Sports Law at p. 77 by Adam Epstein, Delmar Leaning (2003)
State. When an employee is covered by a workers' compensation statute, and when
the injury is job connected, the employee's remedy is limited to what is provided in the
worker's compensation statute.

Compensation for injuries to an athlete is a prime subject for any collective bargaining
agreement in professional sports that involve a players association or union When
players are injured from an activity arising out of and in the course of their employment,
the private agreement between the players, team, and league often avoid any necessity
of filing a claim under the state’s workers compensation statute.

Since being an employee is a prerequisite to filing a claim under workers compensation,
usually only professional athletes may consider filing a claim. Should student-athletes
who receive athletic scholarships be entitled to compensation if they suffer a temporary
or permanent injury while participating in their sport for their school, college, or
university? It seems clear that the student-athlete has not yet been given the right to
claim workers compensation since they are not yet recognized as employees. However,
the NCAA has a Catastrophic Insurance Plan covering every student who participates in
college sports, including managers, trainers, and cheerleaders. One can learn more
about this plan by visiting the NCAA website (www.ncaa.org). 14

Insurance
Since any sports activity involves a degree of risk or injury, it is generally recognized
that events and participants should purchase insurance to protect against a claim of
negligence arising from that activity. Sports insurance policies do not relieve an
individual or event from liability from negligent behavior. However, having insurance
does ensure that if a judge or jury believes that damages should be awarded for an
injury arising from the activity, the insurance company stands in the shoes of the
defendant and must therefore pay in accordance with terms of the insurance policy.
Exceptional student-athletes and professional athletes are wise to purchase a policy
that covers their own participation in the activity. Such insurance for the professional
athlete may be referred to as a career-ending injury insurance and usually requires
large premiums to maintain because of the potential for great financial loss, especially
at the professional level.

Waivers and Releases
A waiver or release is the intentional and voluntary act of relinquishing something, such
as a known right to sue a person, educational institution, or organization for an injury.
Waivers and releases are commonly used by the sponsor of an event (e.g., a marathon)
and schools when competitors, students, faculty, or visitors participate in a private or
institution-sponsored activity. The term waiver is sometimes used to refer a document
that is signed before any damages actually occur. A release is sometimes used to refer
to a document that is executed after an injury has occurred. A waiver can be an
effective way for a person, educational institution, or organization to inform students,
parents, event participants, and family members of the risks involved in various
activities and to shield the person, educational institution, or organization from liability.
14
     Id.
The best releases explain the risks of a particular activity or program in detail. So, even
if all aspects of a release are not upheld in court, you can show that the releasing party
was informed about the specific risks and should be responsible for his or her own
conduct. Waivers, as described above, often contain express assumption-of-risk
language. This type of language:

      Describes the activity;
      States that the signer has full understanding of the nature of the document;
      Knows of the specified risks;
      Voluntarily chooses to assume the risk; and
      Agrees not to hold the institution liable for the consequences of his or her
       participation in the described activity.

If the participant later is injured and brings a lawsuit, this language permits an
organization, school, college, or university to maintain that the participant’s signature
shows he or she voluntarily took part in an activity with known risks and, therefore,
should not receive damages. When outside entities or organizations use an institution’s
facilities (such as a school’s track or cross country course), the institution may try to limit
its liability exposure by having participants sign a hold-harmless agreement. This
document is a promise by one party not to hold the other responsible for any costs or
claims that may result from a loss that results from the subject matter of the agreement.

CAVEAT: Courts go not always uphold waivers and releases. In Quinn v. Mississippi
State University, 720 So. 2d 843 (Miss. 1998), the Mississippi Supreme Court rejected a
release signed by a 12-year-old attendee at a Mississippi State University baseball
camp and the child’s father. The child and his parents sued the institution for injuries the
child sustained when he was hit in the mouth with a baseball bat by a coach who was
demonstrating how to hit baseballs off a tee. Because the release did not mention an
instructor’s acts, the court ruled that it was not clear that the parties contemplated such
acts of negligence when they signed it. In Whittington v. Sowela Technical Institute, 438
So. 2d 236 (La. 1983), the Louisiana Court of Appeals upheld a jury verdict against the
institute on the grounds that the release was not freely and voluntarily given. A senior
nursing student was required to sign the document before participating in a field trip to a
hospital. On the way to the hospital, the driver of the 15-passenger van in which she
was a passenger lost control and the van turned over, killing her. Among the factors the
court considered were that the institute did not offer alternative classes for students who
chose not to participate in the field trip, that it required students to travel in a group and
did not permit them to use their own vehicles, and that it dictated the terms of the
document. Students were required to sign to release it from liability for a reasonably
foreseeable danger.

Some courts have upheld releases and waivers. In Sharon v. City of Newton, 769
N.E.2d 738 (Mass. 2002), the Massachusetts Supreme Judicial Court upheld a school
district’s release signed by a student and her father to permit her participation in
cheerleading activities. The student was injured while participating in cheerleading
practice, and the court rejected the lawsuit alleging negligence and the negligent hiring
and retention of the cheerleading coach. In reaching its decision, the court noted that
the student and her father had ample time to read and understand the release before
signing it, that cheerleading activities were not deemed to be compelled nor essential,
and that releases were favored as a matter of law in Massachusetts. It stated that to
hold releases unenforceable in such circumstances would expose public schools, which
offer many extracurricular sports opportunities, to financial costs and risks that would
inevitably lead to reductions in those programs. As these examples show, courts vary in
their approach to releases depending on the particular facts of each case, the releases
effect on other statutes and laws, and the courts’ views of the benefits of releases as a
matter of public policy.

Essential to the Public
Courts have often ruled that waivers and similar documents that affect the public
interest are invalid. In Kyriazis v. University of West Virginia, 450 S.E.2d 649 (W. Va.
1994), a student at the University of West Virginia who signed a release as a condition
for playing in a rugby club sued the institution after being injured during a match. The
university argued that the rugby club was an extracurricular activity and not a public or
essential service, but the court said that providing recreational activities were part of the
university’s educational mission and of its performance of a public service. However,
state courts differ in what they deem to be essential.

Voluntary Agreement
Courts have rejected agreements when they find that the participants do not enter into
the activity, freely, and voluntarily, as was the case in Whittington v. Sowela Technical
Institute.

Parties to an Agreement
Many courts will invalidate documents signed on behalf of minors. For example, in Scott
v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992), the Washington Supreme
Court rejected a release that the mother of a 12-year-old boy had signed, saying it
violated public policy and was unenforceable because it barred the child’s own cause of
action. The child had been seriously injured at a ski school when he crashed while
trying to ski on a slalom race course.

Unambiguous Language
Releases and similar documents are most likely to hold up in court if they use specific,
clear, and unambiguous language. Releases for a specific event are more likely to
survive legal scrutiny than releases for a more long-term activity. Some courts have
rejected documents that don’t explain the nature of the activity, including its difficulty,
dangers, location, and other details. Some jurisdictions require use of the word
negligence, or similar such words. Courts may also require that the language which
describes what is being waived be conspicuous, such as in bold or capital letters.

Relative Bargaining Power
Courts usually examine whether the two parties to an agreement have equal bargaining
power. The courts may take into account a number of factors, including the opportunity
for the two parties to negotiate. For example, in Kyriazis v. University of West Virginia,
supra, the court took into consideration that the university’s counsel prepared the form,
but the student did not have the benefit of counsel.

Gross Negligence and Intentional Acts
Courts do not permit institutions to waive their responsibility when they have exercised
gross negligence or misconduct that is intentional or criminal in nature. Such an
agreement would be deemed to be against public policy because it would encourage
dangerous and illegal behavior.

Ticket Stubs and Waivers
Waivers are often found on the backside of ticket stubs for sporting and entertainment
events. Most fans do not read these waivers (many are not even aware of the existence
of the waiver on the back). Defendants will often raise as a defense to a negligence
claim that such language should relieve them from liability. Generally, these waivers are
virtually unenforceable since there was no intent on the part of the fan to agree to such
terms. Also at issue is the lack of informed consent, and the courts have traditionally
refused to impose such waivers on fans as a matter of public policy.15

Minors and Waivers
In areas such as Little League sports or even amusement park rides, waivers are often
signed by parents of a minor to avoid liability or give up the right to sue in the event of
an accident that causes injuries. The law is unclear as to whether parents who sign
waivers on behalf of their children will release a potential defendant from liability to the
minor. The trend is to enforce such waiver arrangements signed by parents on behalf of
a child. However, it is quite possible that a court could refuse to enforce such a waiver,
especially for gross negligence or recklessness. A court does have the option of not
enforcing a waiver signed by the minor or parent. Such cases should be analyzed on a
case-by-case basis, paying close attention to the particular state’s common law
interpretations of waivers.16

Commercial Misappropriation
Though athletes may find that a successful suit under defamation standards is
extremely difficult, an area that proves worthy of a lawsuit involves the use of the
athlete’s name, image, or likeness without the athlete’s consent in order to make a profit
or sale. Such non-approved use of an athlete’s persona is referred to as commercial
misappropriation.

Since manufacturers and other sellers of products and services commonly use an
athlete in marketing in the form of an endorsement contract, athletes must be cognizant
to protect from the unauthorized misuse of their image. Establishing a trademark
(including an Internet domain name) for one’s name or image may be necessary for
professional athletes (and certainly professional and amateur leagues and
organizations) to prevent improper use of a name for profit.

15
     Id at p. 79
16
     Id at p. 79
Products Liability
Products liability in sports represents an area of negligence involving a sporting goods.
When plaintiffs sue a manufacturer of sporting goods, the claimants allege that they
suffered an injury due to the use of a product that was defective. Bats, gloves, shoes,
helmets, pads and other goods used in a sport are subject to a lawsuit if there is a
defect in the design or manufacturing process. This may be referred to as a
manufacturing defect or design defect.

Manufacturers of goods may also be sued for failing to warn the user of potential
dangers involving use of the product. Since goods are involved, the Uniform
Commercial Code (UCC) is often called into play, and the user of the product alleges
that there was a breach of the warranty of merchantability or a breach of the implied
warranty of fitness for a particular purpose. UCC Article 2 governs the sales of goods
and has been adopted in whole or in part by every state.


                                III.   SPORTS CRIMES

Rules of law set the standard of conduct for people to follow. When a person disobeys a
law, he is susceptible to two possible consequences. One consequence is punishment
by the government for his crime, and the other is the possibility of a civil lawsuit for
damages sustained by the victim of the crime. Damages sustained by a victim are
governed by principles of tort law. A crime is an offense against the government. It is a
breach of a duty to the public. It is conduct that is prohibited and punished by a
government. Each state has its own set of statutory criminal laws. However, these
statutes are very similar. Crimes may be classified in terms of their seriousness as
felonies and misdemeanors. An act may be a felony in one state and a misdemeanor in
another. Felonies include serious crimes such as arson, murder and robbery, for
example. Crimes not classified as treason or felonies are misdemeanors and include
such things as reckless driving and disturbing the peace. Felonies are generally
regarded as more serious in nature. Felonies require a penalty of more than one year in
state or federal prison.

Misdemeanors, though still serious, do not allow for incarceration for more than one
year in county jail. State and federal laws both fall into misdemeanor and felony
categories. Crimes against the person including assault, battery, robbery, hazing,
murder, rape, and kidnapping. Crimes against property rights include arson, trespass,
vandalism, and theft. Crimes affecting the public health and welfare including blackmail,
illegal gambling, and prostitution. Crimes against the government including tax evasion,
treason, RICO violations, and terrorism. There has been debate as to whether or not a
sports participant may or should be charged with a crime for activity that occurs during a
sports contest. Should athletes be subject to such criminal charges during a sports
contest for their misconduct or is this better left up to the sports leagues and
organizations themselves? Very few cases involving these types of sports crimes have
ever gone to court.
High-profile athletes lead a life in the public spotlight and may often be held to higher
scrutiny for their behaviors both on and off the field than the general public. However,
should such financial and social status affect whether a prosecutor brings a charge
against sports participants for intentionally injurious conduct during a sports event?

Violent and aggressive contact among sports participants provides a vicarious thrill for
the crowd, and such behavior is generally perceived to be a legitimate part of the game,
not a matter for criminal courts. Still, violence in the sport of hockey has been
prosecuted in Canadian courts.

Types of Crimes
Criminal law is certainly a factor to be considered in sports. For example, numerous
federal and state laws outlaw the use of certain performance-enhancing drugs, sports
gambling, ticket scalping, sports bribery, and the influence of organized crime in sports.
Additionally, sports agents who fail to register with the appropriate state agency or those
who offer financial inducements to a student-athlete may be subject to criminal and civil
penalties for such actions. Much of the violence found in sports would constitute crimes
against the person if it occurred outside the sports contest. Players hit, punch, check,
trip, and commit other aggressive and violent acts during the course of a sporting event.
Such conduct is usually considered part of the game, but occasionally the conduct is so
outrageous that a criminal charge might be warranted. Some states are adopting
legislation to address intentional injuries to sports participants, particularly sports
officials.

                                    Contact Sports
Athletes in contact sports are trained to be aggressive and are often encouraged to
make violent plays even as children. In the sports of football, hockey, and boxing, for
example, participants are encouraged from a young age to hurt the opponent. Clearly,
this is the ultimate goal of boxing.

Are hockey players encouraged to use their sticks as potentially deadly weapons? Are
football players taught to hit each other by leading with their head and hitting a
vulnerable opponent? Should the aggressive and sometimes out-of-control behaviors by
athletes during a sports contest be subject to criminal law?

General Criminal Law Principles
Burden of Proof: Prosecutors who believe that illegal behavior has occurred during a
sports contest must prove their criminal case beyond a reasonable doubt. This is more
difficult than the preponderance of evidence test in tort law. It is more difficult to prove
that a defendant is guilty of a crime than liable in tort. If the defendant is found guilty of a
crime, the judge must then render a sentence. Most criminal laws dictate a minimum
and maximum sentence, and the judge must consider mitigating factors that might
reduce a sentence.

Defenses to Criminal Charges
The defenses to crimes of consent to contact, self-defense, and a general reluctance by
the federal and state government to prosecute alleged crimes have limited the exposure
of criminal law in the sports context. Additionally, if a player reasonably fears imminent
harm by an opposing player, the defense of self-defense can often overcome the
prosecution’s attempt to show intent to injure.

Criminal Intent
The essence of criminal law is that the perpetrator has formed an intent to commit a
crime and then carried out that intent. Such intent is referred to as the mens rea, and
the act itself is called the actus reus. Both elements are necessary for most criminal
convictions. A person cannot be punished for having criminal thoughts alone. However,
the crime of conspiracy does punish wrongdoers for agreeing to commit a future crime.
Additionally, if an individual attempts to commit a crime and fails, he or she may be
punished; attempted murder is one example. In other words, the attempt was a crime
even though it failed. To get a criminal conviction, the prosecutor generally has to prove
that the defendant had the intent to commit an unlawful act.

Assault and Battery
The crimes of assault and battery would likely be the most prevalent crimes in sports.
An assault is a willful attempt or willful threat to inflict injury upon another person. It is
also defined as intentionally placing someone in fear of imminent bodily harm. A battery
is the actual intentional physical contact. It is sometimes referred to as a successful
assault. When an assault and/or battery involves a weapon, serious bodily injury, deadly
force, or when the assault or battery is committed in conjunction with another crime, the
term aggravated is often used.
SPORTS VIOLENCE
It was in American football that athletic violence was first questioned on a governmental
level. In 1901, six American university football players died while playing in games. The
press of the day condemned the deadly violence that had occurred and demanded
changes in the sport. University presidents threatened to end all collegiate contests. In
1905 The President of the United States, Theodore Roosevelt, a former collegiate boxer
at Harvard University, stepped in and forced collegiate officials to change the rules of
football to protect the players. He threatened to stop all football playing if the rules were
not changed and implemented by the next season. Roosevelt prevailed, and American
football survived its first threat.

Illegitimate Sports Violence
In contact sports players often suffer injuries. However, at what point (if any) does an
injury as the result of honest play turn into an injury due to intentional and excessive use
of force by a player that might subject him to criminal liability? Much of the analysis of
the criminal law application in sports context comes from hockey and the Canadian
courts. Currently only a few major cases appear to set a standard for prosecuting
athletes for violence sorts. Where the line is drawn between acceptable (within the
rules) and unacceptable (outside the rules) violence remains unclear. In 1969, Wayne
Maki of the St. Louis Blues hockey team swung his stick at Boston Bruins player Ted
Green and fractured his skull in a preseason exhibition game in Canada's capital of
Ottawa. Both players were involved in two fights in the same game, and both were
thereafter charged with different forms of assault. Maki’s case was dismissed under the
theory of self-defense, but the court refused to differentiate between sports contests and
real-world violence. In the Green case, Green was found not guilty because it was held
that his actions were an involuntary reflex to be part of the roughness of the game. No
conviction resulted in either case, but the court noted that sports were not immune from
criminal prosecution. One famous case in the United States involving the NHL followed
a 1975 incident involving Dave Forbes, a player for the Boston Bruins. Forbes knocked
down an opposing player and proceeded to punch him in the back of the head, and
pummel his head into the ice. This was the first U.S. case where a player was criminally
prosecuted for on-ice violence. Although the evidence was overwhelmingly against
Forbes, he was nonetheless acquitted by a split jury decision. Alarmingly, from the time
of this incident until today, the criminal court system within the U.S. has deferred to
league self regulation within hockey.

Hackbart v. Cincinnati Bengals, Inc.
Though this was not a criminal case, the court discussed the involuntary reflex defense
regarding aggressive contact during a sports contest. Cincinnati Bengals football player
Charles Clark hit Denver Broncos player Dale Hackbart on the back of the head out of
frustration after an interception. The play was over, and Hackbart was not looking when
he was hit from behind. He broke three vertebrae in his neck and suffered several
muscular injuries as a result. The district court stated, “The violence of professional
football is carefully orchestrated. Both offensive and defensive players must be
extremely aggressive in their actions, and they must play with reckless abandonment of
self-protective instincts.”17 The 10th Circuit Court of Appeals reversed the trial court by
holding that even a football player may be held responsible for injuring an opponent if
he acts with the reckless disregard for the opponent’s safety.18

The Case of Dino Ciccarelli
In another hockey case, Dino Ciccareffi, the captain and all-time leading scorer for the
Minnesota North Stars, pounded Luke Richardson in the mouth repeatedly. In 1988, a
Canadian court held that Ciccarelli was guilty of criminal assault and had to serve one
day in jail and pay a $1,000 fine as an example to others that such violence in hockey is
not acceptable. This was the first ever jail sentence for a professional athlete for
violence that occurred during a sports event. Other cases have been prosecuted, but
they have been limited to hockey and have been tried mostly in Canadian courts.
Ciccarelli is believed to be the first National Hockey League player to receive a jail term
for an on-ice attack on another player.19

February 21, 2000 – Marty McSorley Incident
One of the most publicized incident of excessive violence in the modern era of hockey is
that involving Marty McSorley of the Boston Bruins, and Donald Brashear of the
Vancouver Canucks on February 21, 2000. After fighting and losing to Brashear early in
the contest, McSorley sought revenge later in the game by trying to goad Brashear into
another fight, which Brashear would have no part of. With time winding down, and his
team significantly behind, McSorley skated towards Brashear from behind and slashed
at his head with his stick. Brashear’s head smacked the ice, sending him into
convulsions. The NHL immediately suspended McSorley for the remainder of the
season. Later, he was convicted of assault and given an 18-month conditional
discharge by the court.

Criminal assault occurs when one unjustifiably and intentionally uses force upon
another with intent to cause injury. The crime usually involves a threat of harm, coupled
with improper contact with the other person. As every fan knows, ice hockey involves
considerable body contact and occasional fighting. Many consider the hits, blows and
fights as a part of the game. The NHL has rules regarding penalties for such infractions.
Over the years, many have been hurt in hockey altercations, but few cases have gone
to criminal court. The McSorley case did.

March 8, 2004 – Todd Bertuzzi Incident
Late in the third period, while losing 8-2, Vancouver’s Todd Bertuzzi stalked Colorado’s
Steve Moore down the ice holding onto the back of his jersey. Bertuzzi could be seen
whispering into Moore’s ear, while he leisurely strolled behind him. When the play
began to move in the other direction and Steve Moore began to skate away, Bertuzzi
dropped his stick and delivered a blindsided, right handed, punch to the side of Moore’s

17
  Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352, 355 (D. Co. 1977), rev’d 601 F.2d 516 (10 th Cir. 1979),
cert. denied 444 U.S. 931 (1979).
18
     Id at p. 92
19
     Id at p. 93
face. Moore fell forward with Bertuzzi still on his back driving his head into the ice.
Several other players quickly joined the melee by piling on top of Moore’s motionless
body. Steve Moore suffered facial lacerations, a concussion, and two damaged
vertebrae, which have subsequently put his professional hockey career on hold,
indefinitely. Bertuzzi was immediately suspended by the NHL for this transgression,
while the Vancouver police immediately opened a criminal investigation.

The legal response to this incident was so immediate that police officers began
interviewing fans, players, trainers, coaches, and administrative personnel who were in
attendance. On June 24, 2004, Todd Bertuzzi was formally charged by the Vancouver
attorney general for assault causing bodily harm. Due to the publicity and severity of the
act, along with the overwhelmingly public outcry that followed, it is speculated that all
athletes in the NHL were quickly informed of the incident and the severity of the
punishment that Todd Bertuzzi was facing.

Another incident involved Jesse Boulerice, who while playing in a minor league hockey
game “grabbed his hockey stick at the end of the handle with both hands, and swung
his hockey stick, in a baseball type swing, at Andrew Long.” Similar in substance to the
McSorley incident, the victim here hit the ice and went into convulsions. However, the
injuries suffered in this case were more severe than those reported in McSorley.
Following the path of the NHL, the Ontario Hockey League (OHL) suspended Boulerice
for a year. In addition, Boulerice was suspended from the Philadelphia Flyers minor
league team (to which he was assigned) for six months. Also, formal assault charges
were filed against Boulerice by Long in Wayne County, Michigan. Originally charged
with assault with intent to commit great bodily harm, Boulerice was able to plea to a
reduced charge of aggravated assault, no trial was held, and he was sentenced to 3
months probation. Although deterrence for players as a result of the court’s action in this
case is not likely, the league suspension of one year and six months will certainly have
a greater impact in that regard. Despite the noted increased prosecution indicated
above, to this day, no player in the NHL or its minor league affiliates has been sent to
jail for conduct in an athletic event that occurred on U.S. soil.

Over the past decade or so, the courts have begun to convict players more frequently
for on-ice assault. And, where the courts initially differentiated between conduct that
was incidental to the game and in the heat of the moment (Maki), with conduct occurring
after the play was over (Gray), recent court decisions are now simply finding incidents
that occur during the course of play to be excessively violent. Since the most common
defense to excessive violence is consent, the court in Regina v. Cey,20 developed a five
part test to determine if valid consent exists in the context of an athletic event. They are:
“(1) Nature of the game; (2) nature of the act; (3) the degree of force employed; (4) the
degree of risk of injury; and (5) the state of mind of the accused.”

Governmental Legislation


20
     Regina v Cey (1989), 48 C.C.C. (3d) 480 (Sask. CA.) 32.
Certain individual or collective conduct during a sports contest would likely be prime
targets for criminal charges if they occurred outside the sports arena. However,
prosecutors rarely charge athletes for acts committed during a game. Many people
believe that leagues themselves should regulate violence in sports. There have been
several attempts at the federal level to regulate sports violence, such as proposal of The
Sports Violence Act of 1980. This act would have imposed up to one year in prison for
professional athletes who knowingly used excessive force during a game. However, it
failed to gain enough votes. Another proposed act, the Sports Violence Arbitration Act of
1983, failed to create a sports court for excessive violence.21

Internal League Controls
Violence in sports has become so prevalent that professional sports leagues and other
governing bodies have had to police such activity themselves and provide punishment
(i.e., penalties). In some sports, a stick or ball could conceivably be used as a deadly
weapon to seriously hurt an opponent. Most spectators and prosecutors believe that
such activity is just part of the game. Some scuffles and plays are so violent, however,
that professional and amateur sports leagues have had to form rules that penalize
players with fines and suspensions.

Hockey, for example, recognizes a variety of penalties and even a penalty box for
transgressors. A player may be penalized for numerous violations, including boarding,
butt-ending, charging, clipping, cross-checking, elbowing, fighting, high-sticking,
holding, hooking, kneeing, roughing, slashing, spearing, and tripping.

Baseball winks at bench-clearing brawls. Pitches intended to bean the batter, will result
in the pitchers ejection. Managers may be thrown out of a game for confrontations with
the umpire. Football imposes penalties for roughing the passer and kicker, unnecessary
roughness, holding, spearing, and tripping. These acts would constitute criminal and
civil assaults and batteries but for their occurrence during a sports contest. One of the
major objections to leagues controlling violent behavior is that their actions have not
gone far enough. When fines or suspensions are handed down, they often have little
impact to athletes who make millions for their sports prowess.

Fans and Spectators
Sometimes sports fans may have to be controlled when watching a sports contest. It is
quite common for fans during the heat of a contest to become violent in the stands
among each other and against sports officials and even athletes. This phenomenon is
not unique to the United States. In fact, it is generally accepted that the most violent
fans in the world are at soccer matches. A large number of fans have died during pre-
and post-game soccer celebrations.22

In the city of Philadelphia, fans became so disruptive that when the Philadelphia Eagles
football team plays home games at Veterans Stadium, a roving municipal court is


21
     Id at p. 91
22
     Id at p. 93
located literally underneath the playing field. A local municipal judge hears cases
involving disorderly conduct, public intoxication, and other offenses.23

Sports Officials and Crimes
Numerous examples of players, parents, and other spectators attacking referees and
umpires have forced states to enact legislation to protect sports officials from violence.
Many states have tort laws related to the protection of sports officials.


Ticket Scalping




Ticket Scalping
Ticket scalping is the process of legitimately purchasing a ticket (or large numbers of
tickets) from a legitimate source and then reselling the tickets on the street for more
money than the legitimate price. Some States have adopted laws regulating ticket
scalpers and provide for civil and criminal penalties. Scalping can be a highly profitable
business, particularly when the event is in high demand.

Sports Gambling
Sample College Policy
A student-athlete is not eligible to compete if he/she knowingly:
    Provides information to individuals involved in organized gambling activities
      concerning intercollegiate athletics competition,
    Solicits a bet on any intercollegiate team,
    Accepts a bet on any team representing the institution,
    Solicits or accepts a bet on any intercollegiate competition for any item (e.g.,
      cash, shirt, dinner) that has tangible value, or
    Participates in any gambling activity that involves intercollegiate or professional
      athletics, through a bookmaker, parlay card, or any other method employed by
      organized gambling

23
     Id
In 1992 Congress enacted the Professional and Amateur Sports Protection Act that
prevents states from sponsoring sports-based betting other than in Nevada, Oregon,
Delaware, and Montana. Since gambling often involves interstate commerce, Article I
of the U.S. Constitution allows the federal government to regulate this activity. Sports
gambling involves professional and amateur contests. Gambling can be addictive, a
danger to the emotional and financial well-being of the gambler. Sports gambling is a
major concern on college campuses. The NCAA has amended its own rules to address
the problems and issues related to sports betting.

Sports Bribery and Game Fixing
The basis for the concern about sports gambling is that games fixed by players,
coaches, trainers, or others defeat the ideal that the outcome of a sporting event is left
to chance and skill. An important issue in professional and amateur sports is the role
that the athletes, coaches, and even sports officials themselves might play in altering
the outcome of a game in order to profit from betting on a loss, victory, or point spread.
Federal legislation and numerous state laws have addressed the issues of fixing games
and point-shaving, especially after the gambling scandals involving athletes in the
1990s. Federal and state legislation guards against bribery in sports contests by
providing for fines and/or imprisonment. 24

Professional Sports Gambling Incidents
In 1919, eight Chicago White Sox baseball players were allegedly involved in a
conspiracy that fixed the World Series, and all the players were banned for life. The
White Sox players, including Shoeless Joe Jackson, became known as the Black Sox.
In 1982, the Baltimore Colts football team selected Art Schlichter as the fourth overall
pick in the NFL draft. The Colts did not know that Schleicher had a compulsive gambling
addiction, and he was ultimately suspended by the NFL for betting on sports. He has
been in jail frequently for his misconduct. Another notable victim of gambling impropriety
is baseball player Pete Rose. Rose's alleged gambling problem led Major League
Baseball to ban him from eligibility to baseball’s Hall of Fame. 25

Amateur Sports
College athletes have become targets for illegal gambling activities, particularly since
student-athletes are not paid for their services. Additionally, there have been recent
attempts to outlaw all betting on any Olympic, college, or other amateur sports
nationwide. More than $500 million is wagered on intercollegiate sports each year in
Nevada.26

College Incidents
In October 1951, three University of Kentucky players were arrested for taking bribes to
shave points in a game in New York’s Madison Square Garden two years earlier. In
November 1981, Rick Kuhn and four others were found guilty and sentenced to jail for

24
   Id at p. 96
25
   Id at p. 97
26
   Id
game fixing. Kuhn was a member of the Boston College basketball team. In 1995, Kevin
Pendergast, a placekicker from Notre Dame placed a bet of $20,185 in Las Vegas that
Northwestern University’s basketball team would lose to the University of Michigan by
25.5 points. Pendergast, along with Dewey Williams and Dion Lee (both Northwestern
players), agreed to shave points in exchange for money. All three were found guilty and
sentenced to prison.27
                               IV.    SPORTS AGENTS

Historically speaking, most sports agents recognize the inception of the profession
stemming from the work of several individuals during the 1960's. However, sports
agency can actually be traced back to 1925 when Red Grange hired an agent to
negotiate his professional football contract. Red Grange was the first football player to
have a personal representative, an agent as they are called now, to work out a
performance contract. Grange was the first professional athlete in team sports whose
pay was linked with the number of fans his fame and performance attracted to the
games. These have become commonplace for professional athletes. Grange did not go
out for football when he went to the University of Illinois. He was a star in four sports in
high school (track, football, basketball and baseball). He thought baseball and
basketball were his best sports bets to earn a varsity letter. When his fraternity brothers
directed him to go out for football and got out the big paddle, Grange decided to report.
He was issued jersey No. 77. In the first scrimmage against the Illinois Varsity, Grange
returned a punt 65 yards for a touchdown. Before Grange's meteoric career on the
gridiron, college football was largely a campus game of interest to students and alumni;
but by the time Grange’s All-American career was finished at the University of Illinois,
millions who had no particular interest in a college were aware of the Galloping Ghost
and college football. Professional football, before Grange, was largely played by teams
from neighboring towns in sand lot circumstances before hundreds, rather than
thousands of fans.

Grange’s 1923 team turned in an unbeaten season, were co-champions of the Big Ten
and Red Grange, in his first varsity year, was named an All American. Something very
special was arranged for the 1924 season. The new University of Illinois Memorial
Stadium, largest campus arena in the nation for football, was to be dedicated on
October 18. The University of Michigan, who was also undefeated in 1923 and co-
champions with Illinois, would be the opponent. Michigan came to the big game a
favorite. Illinois was missing some of its players from the 1923 team through graduation.
Illinois had also lost its first game of the season, 9 to 6, to the University of Nebraska.

Grange ran ninety-five yards for a touchdown on the opening kickoff and then rushed
from scrimmage for three more touchdown runs of sixty-seven, fifty-six and forty-four
yards before leaving the field with three minutes remaining in the first quarter. In the
second half, he scored a fifth TD on a twelve-yard run just for good measure.

On Nov. 22, 1925, the day following his last game for the University of Illinois, Red
Grange signed the first big time professional contract, casting his lot with the Chicago
27
     Id
Bears, It called for one hundred thousand dollars and a share of the gate in a period
when most professional football players were getting twenty-five to a hundred dollars a
game, if they were paid at all.

In the 1960s, attorney Mark McCormack’s work with young golfer Arnold Palmer
probably changed the manner in which sponsors dealt with professional athletes. Since
the 1960's, many other remarkable sports agents have made an impression on the
profession that is now dominated by high-profile individuals working for large sport
management agencies. In a famous scene in the 1996 film Jerry Maguire, the sports
agent played by Tom Cruise is goaded by his client, played by Cuba Gooding Jr., to
repeatedly scream into the phone "Show me the money." By the time that film came out,
however, the role of the sports agent had long since been transformed into one far more
sophisticated than simply negotiating contracts. And while screenwriter Cameron Crowe
based the Jerry Maguire character on agent Leigh Steinberg, it was Mark McCormack
who ushered in the modern era of sports management and marketing. McCormack,
founder of International Management Group (IMG), believed the popularity and
marketability of athletes could transcend borders, cultures, language, even sports itself.
McCormack-managed athletes were the first to endorse clothing, watches, and motor
oil. They played exhibition matches around the world. They gave inspirational talks to
business at a hefty price tag.

Whether it was setting up golf matches between a young Arnold Palmer and company
executives at $500 a game, arranging tennis exhibitions throughout China featuring
Bjorn Borg and Jimmy Connors, or promoting a soccer match between Pele's New York
Cosmos and the soccer star's former Brazilian teammates, McCormack had a gift for
keeping his clients well-known and well-paid.

McCormack was born in Chicago in 1930 When he was just 6 years old he was hit by a
car and suffered a fractured skull. The doctors said contact sports like football and
basketball were out, so golf became McCormack's passion. He starred in the sport at
the College of William & Mary, and one day came up against a pretty good Wake Forest
golfer -- Palmer. The two hit it off, and it was not long before McCormack, after
obtaining a law degree from Yale, was busy helping Palmer and other pro golfers look
over their contracts. In 1960, after a hand-shake management deal with Palmer,
McCormack was on his way. After Palmer came deals with South Africa's Gary Player
and Jack Nicklaus, giving McCormack a lock on golf's "Big Three." He then branched
into tennis and other sports with a global footprint. By 1985, IMG's roster included golfer
Palmer, soccer's Pele, tennis players Martina Navratilova and Chris Evert Lloyd, skier
Jean-Claude Killy (who became a very close friend of McCormack's), runners Sebastian
Coe, Bill Rodgers, and Mary Decker Slaney, baseball star Jim Rice, and football player
Herschel Walker. Athletes knew that at IMG, they stood a good chance of earning just
as much off the playing field
				
DOCUMENT INFO
Description: The Sports Law Handbook (For Coaches and Sports Administrators) examines sports and its relationship to various areas of law, as well as the legal liabilities and responsibilities of coaches, administrators, managers, and institutions that have a relationship to the sports field. This book (1) Identifies the relationship of sports to various categories of the law, including contracts, torts, and crimes; (2) Analyzes the role of the attorney and sports agent when representing athletes; (3) Provides insight into sports contracts and contractual terms, and the forms they should take; (4) Discusses the legal issues unique to professional and amateur sports; (5) Shows how criminal law differs from civil law in the context of sports; (6) Gives an overview of the various labor issues in the sports world; and (7) Details the laws and regulations covering the drug testing of athletes.
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PARTNER William Glover
I received my B.B.A. from the University of Mississippi in 1973 and my J.D. from the University of Mississippi School of Law in 1976. I joined the firm of Wells Marble & Hurst in May 1976 as an Associate and became a Partner in 1979. While at Wells, I supervised all major real estate commercial loan transactions as well as major employment law cases. My practice also involved estate administration and general commercial law. I joined the faculty of Belhaven College, in Jackson, MS, in 1996 as Assistant Professor of Business Administration and College Attorney. While at Belhaven I taught Business Law and Business Ethics in the BBA and MBA programs; Judicial Process and Constitutional Law History for Political Science Department); and Sports Law for the Department of Sports Administration. I am now on the staff of US Legal Forms, Inc., and drafts forms, legal digests, and legal summaries. I am a LTC and was Staff Judge Advocate for the Mississippi State Guard from 2004-2008. I now serve as the Commanding Officer of the 220th MP BN at Camp McCain near Grenada, MS. I served on active duty during Hurricanes Dennis (July, 2005), Katrina (August, 2005) and Gustav in 2008. I played football at the University of Mississippi in 1969-1971 under Coach John Vaught. I am the author of the Sports Law Book (For Coaches and Administrators) and the Sports Law Handbook for Coaches and Administrators (with Legal Forms),